Leave Granted to Amend Development Application for Semi-Detached Dwelling

The Court granted leave to amend a development application for alterations and additions to a semi-detached dwelling, subject to conditions. The application sought to increase the setback of the northern wall of the upper level of the proposed addition, among other changes. The Court found that the breach of the floor space ratio standard was justified and reasonable.

Land and [ADDRESS] South Wales

Medium Neutral Citation: [NAME] v Mosman Municipal Council [2019] NSWLEC 1139 Hearing dates: Conciliation conference on 2 April 2019 Date of orders: 02 April 2019 Decision date: 02 April 2019 Jurisdiction: Class 1 Before: [NAME] C Decision: See orders at [7] below Catchwords: DEVELOPMENT APPLICATION – alterations and additions to semi-detached dwelling - conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and [ADDRESS] 1979 Mosman Local Environmental Plan 2012 State Environmental Planning Policy No 55 – Remediation of Land Category: Principal judgment Parties: [NAME] (Applicant) Mosman Municipal Council (Respondent) Representation: Solicitors: [redacted] [NAME] (Respondent) File Number(s): 2018/63802 Publication restriction: No

Judgment 1. COMMISSIONER: This appeal concerns a development application for alterations and additions to a semi-detached dwelling at [ADDRESS], Mosman. The appeal is lodged pursuant to s 8.7 to the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. [ADDRESS] arranged a conciliation conference under s 34(1) of the Land and [ADDRESS] 1979 ("LEC Act") between the parties, which was held on 2 April 2019. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amended development application seeks to constrain the addition in a floor plan that is a mirror-reverse of the floor plan of the existing addition to the other half of the semi-detached dwelling, which is at [ADDRESS], Mosman. The parties agree that this design increases the setback of the northern wall of the upper level of the proposed addition, eliminates any additional overshadowing to windows of habitable rooms in [ADDRESS], provides an appropriate symmetry with the adjoining dwelling at [ADDRESS] and reduces the visual bulk of the development when viewed from [ADDRESS] and adjoining properties.

4. As the presiding Commissioner, I was satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons: * The development works are for the purposes of a semi-detached dwelling, which is a permissible use in the R2 Low Density Residential zone pursuant to the Mosman Local Environmental Plan 2012 ("MLEP 2012"). * I am satisfied that consent should be granted notwithstanding the contravention of the floor space ratio ("FSR") development standard. The development standard establishes a maximum FSR of 0.5:1, pursuant to cl 4.4 of the MLEP 2012. The proposed development has a FSR of 0.52:1, which represents a breach of the maximum FSR by 5%, with additional floor space of 6.85m2. In accordance with cl 4.6(4)(a) of the MLEP 2012, I am satisfied that:

1. The written request, lodged pursuant to cl 4.6 of the MLEP 2012 and attached to the parties' signed agreement, adequately establishes sufficient environmental planning grounds that justify the breach. These grounds are that the proposed additional floor space will allow the addition to the dwelling to have a built form that achieves symmetry with the adjoining semi-detached dwelling at [ADDRESS] by mirroring its form and its existing total floor area. As outlined in the request, this ensures that the proposed addition is compatible with the streetscape of [ADDRESS] and provides built form that is appropriate for the site and the locality.

2. The written request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary as the objectives of the FSR development standard are met notwithstanding the non-compliance.

3. For the reasons outlined in the written request, the proposal is in the public interest as it is consistent with the objectives of the zone and of the FSR development standard. * The parties agree that as the site has been used for residential purposes and as there is no history to suggest that the site is contaminated there is no need for further consideration under clause 7(1)(b) and (c) of State Environmental Planning Policy No 55 – Remediation of Land. * The parties agree that conditions of consent will ensure the fulfilment of the commitments listed in the BASIX Certificate, as prescribed by clause 97A of the Environmental Planning and Assessment Regulation 2000.

1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". [ADDRESS] also required me to "set out in writing the terms of the decision" (s 34(3)(b)).

2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. [ADDRESS] orders that:

1. The applicant is granted leave to amend the development application to rely upon the amended plans referred to in condition 1 of Annexure A.

2. The applicant is to pay those costs of the respondent that have been thrown away as a result of the amendment of the application for development consent, as agreed or assessed on the ordinary basis.

3. The applicant's written request pursuant to clause 4.6 of Mosman Local Environmental Plan 2012 in relation to the development standard for floor space ratio contained in clause 4.4 of that Plan is upheld.

4. The appeal is upheld.

5. Development Application 8.2017.178.1 for alterations and additions to a semi-detached dwelling at [ADDRESS], Mosman is determined by the granting of consent subject to the conditions in Annexure A.

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[NAME] A Plans

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 April 2019